New UK Press Self-Regulation – With a Small Blog Exemption

Following concerns raised by bloggers, the UK government has clarified that small blogs will be exempt from the scope of the new UK press watchdog which is to be introduced as a result of the findings of the Leveson Inquiry.

In 2007, Clive Goodman, then-editor of UK newspaper News of the World, and private investigator Glenn Mulcaire were convicted of the illegal interception of phone messages, and in early 2011, it was revealed that other News of the World reporters had also hacked phones. Later in 2011, the UK government Department for Culture, Media and Sport (DCMS) commenced a public inquiry into the culture, practices and ethics of the Britishpress, chaired by Lord Justice Leveson. In November 2012, following a series of public hearings, Lord Justice Leveson’s inquiry published the Leveson Report, which made recommendations for a new independent regulator for the UK press. As a result of the Leveson Report, the UK government has proposed that a new press watchdog be established by royal charter and backed by legislation; this new self-regulatory system will apply to all “relevant publishers.”

The Crime and Courts Act 2013

The relevant legislation, the Crime and Courts Act 2013 (the “Act”), became law on April 25, 2013. (In terms of the royal charter itself, a draft royal charter put forward by the UK government and a rival draft put forward by some of the leading UK newspapers are due to be considered by the Privy Council in June 2013.) Section 41 of the Act sets out the four criteria that a publication must meet to be a “relevant publisher.” A relevant publisher must:

Publish “news-related” material (i.e., news, information or opinion about current affairs or gossip about celebrities, public figures or other persons in the news);

Publish in the course of a business;

Publish material written by different authors; and

Publish material subject to editorial controls.

For purposes of the Act, “publication” means on a website, in hard copy or by any other means.

The draft royal charter proposed by the UK government goes on to make clear that the proposed self-regulatory scheme will cover those who publish in the UK, where a person is deemed to publish in the UK if “the publication takes place in the United Kingdom or is targeted primarily at an audience in the United Kingdom”; the rival royal charter drafted by the press does not suggest any changes to these provisions. Although there is no guidance in the draft royal charter as to the interpretation of “takes place in the United Kingdom,” it appears that the royal charter could cover foreign operators that publish in the UK, in addition to the UK press itself. We note that the risk to such publishers that are based in the United States, at least with respect to defamation claims, may be limited by the SPEECH Act,” which was signed into law in the U.S. in August 2010 as a response to so-called “libel tourism.”

(As a general matter, the SPEECH Act prohibits a U.S. federal or state court from recognizing or enforcing a foreign defamation judgment unless the foreign jurisdiction’s defamation law provided at least as much protection of freedom of speech and press as the U.S. Constitution, as well as the constitution and laws of the state in which the court is located. The SPEECH Act further prohibits U.S. courts from recognizing or enforcing a foreign defamation judgment against the provider of an “interactive computer service,” as defined in Section 230 of the Communications Decency Act (CDA), unless such court determines that the judgment would be consistent with Section 230 if the relevant information had been provided in the U.S.)

A website operator is not considered to have editorial control over material published on its site if the operator did not post the material, even if the operator moderates statements published by others. This is consistent with the approach taken in Section 5 of the UK’s new Defamation Act 2013, which provides that a website operator’s defence of not having posted defamatory material will not be defeated merely because the operator has moderated a statement posted by others.

“Micro-Businesses” and the Small Blog Exemption

Schedule 15 of the Crime and Courts Act 2013 states that a person who, in carrying out a “micro-business,” publishes news-related material which is either (i) contained in a multi-author blog (a blog that contains contributions from different authors) or (ii) published on an incidental basis that is relevant to the main activities of the business, will not be classified as a relevant publisher for purposes of the Act. “Micro-businesses” are defined as those with fewer than 10 employees and an annual turnover of less than £2 million.

Note, however, that a publication that is exempt from the Act as a micro-business could still choose to join the regulatory system and receive the legal benefits otherwise only available to relevant publishers—benefits that include cost protection if a claimant chooses to sue in court instead of using the regulator’s arbitration scheme.

DCMS has created the following infographic for use in determining whether or not a publication is a relevant publisher:

Schedule 15 also specifies other categories of publications which are exempt from the new system, even when the test for relevant publishers is met. These exemptions cover special-interest titles, scientific or academic journals, broadcasters and book publishers, as well as any public body, charity or company that publishes news about their activities.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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